Ridiculous: Lawsuit Against Secret NSA Spying Loses Because the Evidence is Secret

Washington D.C. — A three-judge panel for the U.S. Court of Appeals ruled on Friday that a lawsuit challenging the NSA’s warrant-less, bulk collection of Americans’ data cannot move forward. Ironically, the reasoning behind the ruling is that the plaintiff cannot prove his information was specifically collected — even as the suit’s fundamental premise challenges the extraordinary secrecy under which the NSA has operated for years. The ruling constitutes the latest back-and-forth development in a variety of ongoing court battles on the subject.

Public interest lawyer, founder of Freedom Watch, and Verizon customer Larry Klayman filed the lawsuit. Lower court judge, U.S. District Judge Richard J. Leon, previously ruled that Klayman had “demonstrated a substantial likelihood of success” in proving the NSA’s program is unconstitutional and violated the fourth amendment. In his 68-page, December 2013 opinion, Leon called the program “almost –Orwellian” – and “at best, the stuff of science fiction.” He noted that the government had failed to produce evidence that the practices foiled any terrorist plots.

Even so, the three-judge panel from the Washington D.C. Court of Appeals ruled Friday that Klayman “lack[s] direct evidence” that his communications “have actually been collected,” and therefore cannot proceed. The ruling came in spite of the fact that Verizon is one of the most well-known contributors to the NSA’s program (this information was one of the first leaks Snowden released in 2013).

The “lack of direct evidence” appears to highlight a conundrum in the case. As the Washington Post noted, “The court in Klayman’s case observed that Klayman’s effort to prove standing was complicated by the possibility that the government could withhold information that would bolster his allegations. ‘Plaintiffs’ claims may well founder in that event,’ said Circuit Court Judge Janice Rogers Brown. ‘But such is the nature of the government’s privileged control over certain classes of information. [emphasis added]”

The decision not only handed the case back down to a lower court for deliberation, but also served to invalidate a call to ban NSA bulk data collection issued by Judge Leon in his December 2013 ruling. Though the mainstream narrative asserts that the passage of the USA Freedom Act in June limits government reach, in actuality, it merely adds a bureaucratic step to the process. Rather than accessing user data directly, the government must go through a court to obtain the same information from private companies.

While on its face this seems to provide more oversight, the unfortunate truth is two-pronged: First, the secret Foreign Intelligence Surveillance Court the government must go through for “approval” to spy acts as little more than a “rubber stamp” for state surveillance (admittedly, the USA Freedom Act claims to add transparency to the process, though the government’s track record in this realm is dismal, at best). Second, the companies involved have already overwhelmingly cooperated with the government (news broke last week that AT&T was “highly collaborative” in sharing private user data with the government).

Klayman expressed resentment toward the panel’s Friday ruling. “An ill-informed first-year law student could have written this within one day,” he opined. “Why did you wait nearly two years after Leon issued his decision? You delayed getting to the issues. During that time the constitutional rights of Americans continue to be violated.”

He accused the judges of doing the bidding of Washington’s Republican establishment, which he says operates under the philosophy of “Do what you want, NSA.” Further, he clarified that “Nobody’s against doing surveillance of terrorists. What we’re saying is get a warrant.”

Klayman is confident he can amend his suit to include plaintiffs who can prove the government collected their data. In the meantime, NSA data collection will continue until December, at which point provisions of the USA Freedom Act will take effect (and the same data will continue to be collected).

The only U.S. Appeals Court to judge the merits of the program — the 2nd Circuit Court of Appeals in New York — ruled in May that such spying was “unprecedented and unwarranted.” It is set to hear a case from the ACLU next week seeking to end bulk data collection data now — not in December (regardless, in June the FISA court ruled that the NSA could continue its data collection).

As egregious violations of data collection are tediously argued in court, the government continues to impose upon the privacy of its citizens. As Harvey Geiger, senior counsel for the Center for Democracy and Technology, said of Friday’s ruling, it “demonstrates that excessive secrecy limits debate and reform. It leads to unbalanced surveillance programs and provides victims with little or no recourse.”